Mallard v. Borges

5 Rob. 15

• Court: Supreme Court of Louisiana
• Decided: May 15, 1843
• Status: Published

Opinion

Martin, J.

The plaintiff claims one thousand dollars for his services, as the attorney in fact of the defendants, in supporting their claim to the estate of a deceased relation of theirs. The defendant besides the exception, rei judicata, pleaded the general issue. The exception was properly overruled. The plaintiff’s powers having been revoked, another attorney in fact was appointed, by whom the succession was recovered in the Court of Probates, the plaintiff having intervened, and claimed one thousand dollars for his services, on which claim judgment was given against him. This is pleaded as res judicata, and the First Judge did not err in overruling the exception; as claims in the Court of Probates, are agáinst the estates of deceased persons, and the plaintiff’s was against the present defendants, for services rendered to them after the death of their ancestor.

In the argument, the plaintiff’s claim has been opposed on the ground of excessive neglect, crassa negligentia, which is said to be equivalent to fraud. If this defence was intended, it ought to have been pleaded. The date of the power of the plaintiff does not appear in the record. It was presented to the Court of Probates, on the ]Oth of August, 1839. The present suit was brought on the 2d September, 1840. The proof of gross neglect, on the allegation of which, relief is sought at our hands, is not in the record, and this ground of complaint is not shown to have been made in the court below. We see nothing that can authorize us to reverse the judgment, from which the defendants appealed, it being supported by legal evidence absolutely uncontradicted. '

Judgment affirmed.